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<xTITLE>Why I Don’t Caucus</xTITLE>

Why I Don’t Caucus

by Joy Rosenthal
August 2021 Joy Rosenthal

One of the things to think about when you are looking for a divorce mediator is whether they will meet with both of you together or will meet with you each separately.  

Meeting with each person separately in mediation is called “caucusing.”  Mediators who caucus often do “shuttle mediation” — they go back and forth between parties who are in separate rooms, helping each identify their priorities and working toward a resolution.

But I don’t do it.

I meet with both clients together and communicate with them together.   This is how I was taught by my mentors, Gary Friedman and Jack Himmelstein, at the Center for Understanding in Conflict. They use a model called Understanding-Based mediation, which is a “no-caucus” model. In other words, the 3 of us stay in the room together.  It’s not always easy.  But it’s impactful.  Why?

  • Transparency.  The most important reason to keep parties together is to be transparent, and to show them that I am not doing anything behind their backs.  They know exactly what I am saying, and that I am not taking the other person’s side.
  • Trust. It is important for clients to trust me as I guide them through the divorce process. As you can imagine, this is a time when they might each feel very vulnerable and insecure. That transparency builds trust.  
  • Understanding.  It can be difficult to really hear someone when you are caught up in conflict.  Many times, clients will say something to me that their ex might have heard 100 times before.  But I am hearing it for the first time and often will ask questions to make sure I understand.  As I dig underneath to find out what they really mean, their partner may hear it in a new way.  Sometimes it takes a third person to really help them hear the “same old argument” in a new way.
  • Working Together.  The basis of the Understanding Based mediation model is having the clients do problem-solving together.  Suddenly, instead of being focused on what is wrong with the other person, the 3 of us are looking together at a problem that is outside of us.  That makes it so much easier to solve!  And this sets up a model for a new kind of working relationship that clients can use going forward.

As an example, let’s say Betsy and Loren are divorcing and cannot agree on whether to sell the house.  Perhaps Betsy wants to keep the house and Loren wants to sell it.  They have been arguing about this for months, and it seems like an intractable problem.   I ask Betsy questions about why it is important to stay in the house, and she tells me that the children are experiencing too much change right now, and she wants them to have some stability. I ask Loren why it’s important to sell the house, and Loren says that renting is not a viable long-term, and that they need to have access to their investment.  Both of these are reasonable positions!

So the three of us work together to find a solution that allows the kids to have stability while Loren can access their investment.  We may brainstorm ways that Betsy can access funds to buy out Loren’s share of the house.  (For instance, she could finance, or borrow funds from somewhere or someone else.). Or we may brainstorm ways to keep the kids in the house for a few years and then sell it later.  As we work through different possible solutions, we know that we have 2 goals in mind that are not mutually exclusive.  In other words, this is not about a compromise that no one is happy with.  It is about figuring out what are the core priorities, and finding ways to address them.

Notice that the important thing here is not just coming up with a solution.  In brainstorming solutions, Betsy and Loren go from being enemies to being people who can work side by side to solve a problem.    We have not only solved the issue, but transformed the nature of the conflict itself.

And that is the magic of mediation!

Biography


Joy S. Rosenthal, Esq. is a compassionate mediator, a skilled negotiator and an intelligent litigator with extensive background in the private and public sectors. Joy served as a Staff Attorney at the Legal Aid Society's Juvenile Rights Division for nearly 10 years, where she represented hundreds of children and teenagers in foster care, child welfare, custody, adoption, PINS (Person in Need of Supervision) and delinquency cases in the Bronx and in Brooklyn. Joy was honored to be selected for a one year fellowship at New York University School of Law's Family Defense Clinic, teaching law students to represent parents in child welfare proceedings. Joy founded Rosenthal Law & Mediation in 2006. The firm's practice centers on family and estates law, as well as family-based mediation. In addition to her private practice, she mediates custody and visitation disputes for the New York City Family Courts and serves as a Guardian Ad Litem, protecting the rights of youth and the disabled in New York City Surrogates Courts. She also serves as President of the Board of Directors of the Family and Divorce Mediation Council.

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